ATTUKAL JEWELLERY VS ASSISTANT COMMISSIONER OF INCOMETAX
2000 P T D 3598
[238 I T R 185]
[Kerala High Court (India)]
Before P. Shanmugam, J
ATTUKAL JEWELLERY
versus
ASSISTANT COMMISSIONER OF INCOME-TAX and others
Original Petition No.2426 of 1999, decided on 29/01/1999.
Writ-
---- Altemate remedy available---No appearance on behalf of petitioner when impugned order was passed---Delay in filing writ petition---Writ would not issue---Constitution of India, Art.226.
Held, dismissing the writ petition, that the petitioner had challenged an order of the Tribunal. The petition was not maintainable since if the petitioner was aggrieved by the decision rendered. The only course open to the petitioner was to file a reference application. The point that was raised by the petitioner was that this was an ex parte order. From the order, it could be seen that there was no appearance on behalf of the assessee. That apart, order was passed on August 29, 1997, and the application was filed only on January 12, 1999.
T.M. Sreedharan and N. Unnikrishnan for Petitioner.
P.K.R. Menon and George K. George for Respondent.
JUDGMENT
The petitioner challenges Exh. P-3 order of The Income-tax Appellate Tribunal. In my view, this original petition is not maintainable since if the petitioner is aggrieved by the decision rendered, the only course open to the petitioner is to file a reference application. The point that is' raised by learned counsel for the petitioner is that this is an ex parte order. His application Exh. P-4 could not be considered because of the Tribunal not functioning. From the order, it could be seen that there was no appearance on behalf of the assessee. In Exh. P-4, it is not stated that the petitioner had entered appearance. That apart, the order was passed on August 29, 1997, and the application was filed only on January 12, 1999.
In the above circumstances, prima facie, I do not find any bona fides in the application. This appears to be made only for the purpose of moving under Samadhan Scheme. Therefore, I do not find any ground to interfere with Exh. P-3 order by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. It is open to the petitioner to move the Tribunal to consider the application. The Tribunal shall decide the matter uninfluenced by arty of the observations contained in this judgment.
Original petition is accordingly dismissed.
M.B.A./85/FC Petition dismissed